United States of America, Plaintiff-appellee, v. Bedford James Hern, Defendant-appellant, 469 F.2d 689 (9th Cir. 1972)

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US Court of Appeals for the Ninth Circuit - 469 F.2d 689 (9th Cir. 1972) Nov. 9, 1972

Mobley M. Milam (argued), San Diego, Cal., for defendant-appellant.

James W. Meyers, Asst. U. S. Atty. (argued), Stephen G. Nelson, Douglas G. Hendricks, Asst. U. S. Attys., Harry D. Steward, U. S. Atty., San Diego, Cal., James L. Browning, Jr., U. S. Atty., Brian B. Denton, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Before HAMLEY and WRIGHT, Circuit Judges, and POWELL, District Judge.* 


Appellant entered a plea of guilty to Count 2 of the indictment charging him with unlawful transportation of heroin in violation of 21 U.S.C. 174, committed on April 18, 1971. Count 1 was dismissed. He was sentenced to 15 years imprisonment. Appellant's two contentions are that the statute was beyond the power of Congress to enact and the refusal to name the informant deprived him of due process. In the context of this case neither contention is supported by the authorities and both are rejected. We affirm.

Appellant was sentenced on August 30, 1971. He now argues he should have been sentenced under the Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 91-513, 84 Stat. 1236, the effective date of which was May 1, 1971.

Appellant may make any motion he deems appropriate in the district court under Rule 35 F.R.Cr.P. for reduction or modification of sentence. See: United States v. Pregerson, 448 F.2d 404, 409 (9 Cir. 1971); United States v. Stephens, 449 F.2d 103, 105, 106 (9 Cir. 1971); United States v. Fiotto, 454 F.2d 252, 255 (2 Cir. 1972); United States v. McGarr, 461 F.2d 1, 3, 4, 5 (7 Cir. 1972); United States v. Winston, No. 72-1500 (9 Cir. 1972).

Affirmed. Mandate will issue forthwith.


Honorable Charles L. Powell, Senior United States District Judge for the Eastern District of Washington, sitting by designation